A8 O THEGLOBEANDMAIL| WEDNESDAY,NOVEMBER13,
A
Charter challenge to the
foundations of Canada’s
health-care system is final-
ly scheduled to begin hearing
closing arguments on Monday, 10
years after the pugnacious pri-
vate-medicine advocate Brian
Day asked the courts to undo a
law that effectively bars patients
from paying for necessary medi-
cal care.
At stake in the unusually long
British Columbia trial – which has
already consumed 179 days of
court time over nearly three years- is nothing less than the survival
of medicare’s central organizing
principle that hospital and physi-
cian care should be doled out first
to those who need it most, not to
those who can pay the most.
“It absolutely could set a prece-
dent for the rest of Canada,” said
Rupinder Brar, a Vancouver ad-
dictions-medicine physician and
member of the board of Canadian
Doctors for Medicare, an inter-
vening party in the case. “I think
all Canadians should be very con-
cerned because it’s in the very
fabric of who we are as a nation
that we provide care for one an-
other when we need it.”
Dr. Day argues there is another,
equally important principle at
play: the Charter-protected right
to life, liberty and personal secu-
rity, which he argues is violated
by interlocking legal provisions
that effectively prohibit patients
from buying private insurance or
paying out of pocket to relieve
their suffering when the public
system can’t help them in a time-
ly way.
In an interview, the 72-year-old
orthopedic surgeon said he has
never been interested in
dismantling Canada’s public
health-care system.
The marathon legal battle, he
said, has always been about add-
ing more private options to the
public system, not unlike many
European countries that provide
faster access and spend less per
capita on health care than Cana-
da.
That position has made the
Liverpool-born chief executive
officer and medical director of the
private Cambie Surgery Centre in
Vancouver something of abête
noireto medicare’s defenders and
their political allies.
Two political parties under
three premiers in B.C. have fought
Dr. Day’s claim; the federal gov-
ernment joined the case as an in-
tervenor after Justin Trudeau’s
Liberals won the 2015 election.
“The only good thing about the
trial process,” Dr. Day said, “has
been that it has moved it out of
the realm of politicians. It’s now
in the hands of a judge. And that’s
that.”
The question soon to be in the
hands of B.C. Supreme Court Jus-
tice John Steeves is whether a
handful of provisions in B.C.’s
Medicare Protection Act violate
Canada’s Charter of Rights and
Freedoms.
The B.C. law doesn’t explicitly
prohibit well-off patients from
buying their way to the front of
the queue. Rather, it dampens the
market for private care by prohib-
iting physicians from “enrolling”
to work in the public and private
systems at the same time; by for-
bidding enrolled doctors from
charging patients for publicly
covered services; and by barring
the sale of private insurance for
medically necessary hospital and
doctor care. (Private insurance is,
of course, widely available for
care not covered by Canada’s
“universal” system, which doesnot include prescription drugs,
most dental care, home care and
other services provided outside
hospitals and physicians’ offices.)
For more than two decades,
the B.C.government looked the
other way while Dr. Day’s Cambie
Surgery Centre, which opened in
1996, and other private surgical
clinics bucked the law. The clinics
did a brisk – and perfectly legal –
business operating on patients
exempt from the law, mainly in-
jured workers whose care was
paid for by the workers’ compen-
sation system. But the private
clinics also treated regular pa-
tients who paid out of pocket for
swifter diagnostic testing, special-
ists’ assessments and surgeries,
violating a law that Gordon
Campbell, B.C.’s Liberal premier
from 2001 and 2011, said in an affi-
davit his government chose not
to enforce – just like its NDP pred-
ecessors.
“Allowing British Columbians
to obtain private medically neces-
sary services would not result in
any harm to either the accessibil-
ity or viability of the public
health-care system, as demon-
strated by the experience over the
past 20 years in British Columbia,
when the prohibitions on access
to diagnostic and surgical servic-
es were not enforced,” Dr. Day’s
lawyers say in their final argu-
ments, already submitted in writ-
ing. “Further,the government
cannot justify imposing severe
mental and physical harm on
some residents on the basis of an
ideological commitment to per-
fect equality in access to treat-
ment, which is neither created by
the legislation in question nor ob-
tained in practice.”
Although Cambie Surgeries
Corp., along with a sister clinic
and four patients, are technically
the plaintiffs in the case, Dr. Day isDr.BrianDayholdsasignoutsideanunder-constructionCambieSurgeryCentrein1995.TheB.C.governmentofthedayrefusedtoallowBritishColumbianstopurchaseservicesthere,
soDr.Dayandothersattheclinictargetedforeignersorthosefromout-of-province.ButtheclinicwasstillabletotreatBritishColumbiaresidentsforyears.THECANADIANPRESS
Universalhealth
careontrial:
Whatyouneed
toknowabout
ahistoricCharter
challengeinB.C.
Foradecade,surgeonBrianDayhasbeen
fightingtoundolawsbarringpatientsfrom
payingformedicalcareatprivateclinicslikehis.
Here’saprimeronhowthecasecametobe,
andhowitsoutcomecouldaffectyou
Dr.Day,seenin2016,arguesthattheCharter-protectedrighttolife,libertyandpersonalsecurityisviolatedby
legalprovisionsthateffectivelyprohibitpatientsfrombuyingprivateinsuranceorpayingoutofpocketwhen
thepublicsystemcan’thelptheminatimelyway.THECANADIANPRESSTheonlygoodthingaboutthetrial
processhasbeenthatithasmoved
itoutoftherealmofpoliticians.
It’snowinthehandsofajudge.
Andthat’sthat.
BRIANDAY
DOCTOR,PRIVATE-MEDICINEADVOCATE
KELLYGRANTHEALTHREPORTERFOLIO